All posts by Will

“Bad” Google Searches as Extrinsic Immigration Evidence + A Possible Solution

Google_ban_AD

The recent Federal Court case of Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771highlights a growing problem in the assessment of immigration applications, Immigrant Officer relying on poorly researched extrinsic evidence to reject applications.

In Chen, the Applicant, Zhaohui Chen had been convicted of manslaughter and found inadmissible to Canada for serious criminality under section 36(1)(a) of the Immigration and Refugee Protection Act. Mr. Chen exercised his statutory right to file a Pre-Removal Risk Assessment claiming a fear of persecution in China by being Baptist and possible retribution by the manslaughter victim’s family. Mr. Chen cited the risk of Double Jeopardy under Chinese Criminal Law.

The immigration officer (“officer”) in this case conducted his own internet, “Google” search of the term “Zhaohui Chen” and upon finding no results indicating his conviction, concluded that Double Jeopardy was unlikely. Justice Zinn found that failure to put the name search results to the Applicant for comment prior to rendering a decision breached natural justice and allowed the Judicial Review.

When is CIC Required to “Put Their Concerns to Applicants?”

Procedural fairness requires that Applicants have the opportunity to respond to an immigration officers’ concerns under specific circumstances. Two of those particular circumstances include where there are credibility concerns about the Applicant or where the officer relies on extrinsic evidence. Often these two areas are correlated, as a credibility concern can trigger the officers’ extrinsic evidence search or the extrinsic evidence search can reveal information which creates a credibility concern.

In these circumstances, the officer is generally required to contact the applicant laying out the area of concern . The burden of proof is on the applicant to put all necessary information in front of the visa officer and there is no requirement to inform the applicant of all application deficiencies. See particularly: Olorunshola v. Canada (Minister of Citizenship and Immigration), 2007 FC 1056. 

Responding to extrinsic concerns is particularly challenging in the context of Port of Entry examinations. Whereas, with procedural fairness letters one can be given 30-60 days, which upon application can be extended, similar luxuries do not exist at the Port of Entry. Officers in the process of gathering evidence to issue removal orders, can (and do) look through phone evidence, computer evidence, and Google search evidence. This evidence is asked and put to the applicant on the spot to disabuse them of their concerns.

This can be particularly difficult for the already panicking traveller, who is now shown a screenshot of their perceived wrongdoings or a third-party document they have never seen before. With new information sharing regimes coming in, I foresee the use of extrinsic evidence (particularly by CBSA officers) to increase in the near future.

Personally, I also think the amount of time and level of access to extrinsic materials that an applicant has to CBSA officer evidence should have some bearing on the procedural fairness analysis. Unfortunately, in the administrative law context, procedural fairness has become an all-or-nothing proposition. either it was provided or denied by the officer – with nothing in between. In very few Federal Court case law that I have read has procedural fairness been established on the totality of several small administrative breaches that have disadvantaged the Applicant, something that I believe is increasingly happening within the Canadian immigration context.

The Real Problem is the Google Search

Back to the root of the matter, I have a huge concern with Google searches as extrinsic evidence. In fact, in most Canadian legal contexts (notwithstanding the fact the ‘evidence’ rules are laxed in administrative matters and in particular immigration law administrative matters), Google searches are inadmissible.

In fact, as discussed in this great Canadian Lawyer Magazine article by Ontario-based lawyer Ben Hanuka. One particular judicial comment I quite like from the article, is a quote from then Ontario Supreme Court Justice George Strathy:

“[t]here is no evidence that one can extrapolate factual conclusions from the number of occurrences of a particular search phrase on Google.”

But outside of  a legal realm, it is worth assessing the utility of relying on mere Google searches factually and practically as well.

Why don’t we begin with the context of the Chen case, from a completely factual perspective. The Immigration Officer attempted to use Google, a North American search platform currently banned/unavailable in China, and insert the Applicant’s Alphabetized pinyin name, one that legally does not exist in China, to conduct investigative research.

Second, there is no evidence that Immigration Officers are even trained in searches. Having gone through multiple seminars of legal research training on Boolean searches and the proper use of connectors, etc, I still am clueless on how to properly conduct a Google search to give me optimum, specific results.

I have seen even worse than the Chen case. I have personally been involved in files where Google searches pull up outdated or incorrect results that have been used against applicants. Again, within the North American context we consider Google the central hub of our internet activities but in many countries and languages different search engines are used. Google results can be both outdated and limited when compared to these other engines. In fact, Google results can simply “not exist” for various individuals.

Solution – Technological Interaction

The number one way to limit the use of extrinsic evidence is quite logically for an Applicant to submit more, and better evidence. One of the major challenges I have seen with evidence submitted by the Applicants is that the quality and content can often be poor. Photocopies are often unclear. References (i.e. where the evidence was obtained) is often not cited. And often times, particularly if not included in the proper place within an application package or submission, can be difficult to tie to the underlying fact its trying to prove.

I foresee in the not so very future,  procedural fairness letters shifting to virtual form, an upload-able table where the Officer’s concerns are listed alongside the evidence considered – consider like an interactive/virtual foss note system.

I think one of the main solutions that CIC can employ is to implement such a system so that Appicants can also respond, or arguably even submit in advance relevant evidence in a logical way. My one concern, with the way the online portal is currently set up for such things as visa applications and express entry applications, is that it predefines your categories. Documents that do not fit certain categories have to be pdf’d into the “Explanation Letter” or put under an unrelated category where it may be possibly missed.

I like the idea of a using a virtual platform to interact with applicants on their applications and their office concerns.

For example, if an officer were to make a comment challenging the bona fide’s of an individual’s job title by relating to extrinsic evidence from a google search, the applicant would be able to “reply” back virtually through use of his own submissions and evidence. This back and forth could continue as much as would be required to give the Applicant a “necessary opportunity to respond” at which time both officer and applicant would be required to lock-in their inquiries on the matter.

Only time will tell whether this level of interactivity can be implemented or is even desirable from a cost-recovery perspective. Nevertheless, I do hope that Counsel in their judicial reviews take a stronger stance against extrinsic evidence so we may get better jurisprudence on this increasingly important issue.

Disclaimer: I am a chronic Googler who, outside of the legal evidence realm, believe it is the best search platform in the World, bar none.

BC Re-Opened July 2nd With New Programs and Criteria

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I apologize for the long period of no posts. Even checking twitter for #cdnimm news has become a bit of a luxury with several urgent client files on the go.

I wanted to update everybody on important changes that have been made to the BC PNP.

Note that the folowing post was co-written with (and, on that note, substantially written) by Steven Meurrens and can be found on his blog. We hope this piece serves as a good summary and breakdown of the information made available by the BC PNP. I have reposted it with his permission and ask that anybody who wishes to repost it does the same.

Introduction

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP”) re-launched with new program requirements and processes.  The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

  • Introducing an online application process with an electronic payment system;
  • Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
  • Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap);  and
  • Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

  • Skilled Worker
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

  • Skilled Worker
  • Health Care Professional
  • International Graduate
  • International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

  • In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
  • The “Market Rate” for a position is based on an applicant’s employment and educational experience.  It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
  • Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015 [Update: this filled up 24 hours after it opened].  This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project.   New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry.  Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system.  The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream.  The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months.   Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments.  Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

  • Be lawfully admitted in the country that they reside;
  • Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
  • Have a personal net worth of $600,000.00;
  • Have either:
    • a minimum of more than three years experience as an active business owner-manager;
    • more than four years of experience as a senior manager; or
    • a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
  • Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

  • that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
  • that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
  • that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections Points
    1. Experience 24
    2. Net Worth 12
    3. Personal Investment 30
    4. Jobs 36
    5. Adaptability 18
    6. Business Concept 80
Total Points Available 200

Experience points are calculated as follows:

Experience Total Duration Points
Business Owner-Manager Experience Less than 12 months 0
12 to 24 months 4
25 to 36 months 6
37 to 48 months 12
49 to 60 months 15
61 months or more 20
Senior Manager Work Experience Less than 24 months 0
24 to 48 months 4
49 to 60 months 8
61 months or more 12
The maximum score available for this section is 24.
The minimum points requirement is 8.
Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth Points
Total Current Assets (cash and liquid funds) Less than $50,000 0
$50,000 to $199,999 1
$200,000 to $399,999 3
More than $400,000 6
Total Personal Net Worth Less than $600,000 0
$600,000 to $799,999 1
$800,000 to $1,999,999 3
$200,000,000 to $4,999,999 5
$5,000,000 or more 6
The maximum score available for this section is 12
The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment Points
Less than $200,000 0
$200,000 to $399,999 6
$400,000 to $999,999 20
$1,000,000 or more 30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section.
The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent  Job Positions Created and Maintained Points
Less than 1 0
1 2
2 6
3-4 12
5-6 20
7-8 28
9-10 32
11 or more 36
The maximum score available for this section is 36.
The applicant must score at least 2 points, or 12 if there is key staff.
The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor Points
English language proficiency None or minimal, similar to CLB 3 and below 0
Basic understanding, similar to CLB  4 2
Intermediate and advanced, similar to CLB 5 and above 4
Education level Less than two years of post-secondary education 0
Two years or more of post-secondary education 3
Age Less than 20 0
21-39 3
40-60 4
61-64 2
65 or older 0
Business Exploratory Visits to British Columbia No 0
Yes, 1 or more years ago 1
Yes, less than 1 year ago 2
Canadian work experience, business experience, or studies from within Canada for at least 12 months No 0
Yes 5

The scoring for Business Concepts remains unclear.  12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District Points
More than 500,000 people 0
200,000 to 500,000 1 point
100,00 to 200,000 3 points
70,000 to 100,000 6 points
60,000 to 70,000 8 points
35,000 to 60,000 10 points
Less than 35,000 people 12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit.  The points will be based on commercial viability, transferability of skills, and economic benefits.  Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process.  Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business.  The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate.  The entrepreneur must demonstrate to the BC PNP that they:

  • are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
  • reside within 100 kilometers of the business;
  • have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
  • have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Skills-Immigration/Skilled-Workers.aspx

More information about the Entrepreneur Immigration Stream can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Entrepreneur-Immigration/Program-Requirements.aspx

Please contact us if you have any questions or concerns about his upcoming change.

Protecting Yourself From Canadian Immigration Employment Fraud – Three Preliminary Steps

Fraud-and-Misrepresentation

Introduction

Unfortunately, as I have blogged and written about on numerous occasions, there are way too many cheaters currently operating in the global world of Canadian immigration consulting, recruiting, and employment of foreign employees. There’s a whole other issue of incompetent practitioners, but in this post I want to tackle those who purposely are operating fraudulent schemes.

I feel for the victims. Being cheated on is absolutely devastating, regardless of what context. Immigration cheating is another level – individuals quit their jobs, take their kids out of school, and prepare several steps in order to begin what is expected to be a hopeful journey to Canada. All of this to find out there is no job, no position, no work authorization, and no prospects of anything other than heartbreak and financial loss.

This blog post is not a panacea to those challenges. Excellent, well-operated schemes may require competent legal experts to untangle. However, a majority of schemes are so bad and so illegal that a few steps should be able to get to the bottom of it.

So here goes….

1) Read the Contract and Research the Company (Get Advice if Necessary) – In many countries, contracts don’t carry that much legal weight. They carry a lot of weight in Canada. They especially do in the Employment Context.Fraudsters try and put together something fancy looking and expect that you will sign it without reading because it “looks official” and “Canadian.” Especially for non-English speakers, a fancy seal or clauses may immediately give you a false sense of trust. Every clause needs to be read and advice sought on every clause that smells fishy.

Prior to signing your name, consider some of the following (basic W’s)

  • Who are you contracting with? An employer or an agent? What is there name? Do you have any independent proof they exist?
  • What is the content of your contract? Many of these fake contracts are doctored up by individuals with no legal or business experience. Are the terms of the contract even feasible? For example I’d be very concerned if a contract contained clauses that didn’t clearly set out a salary, a location of employment, or necessary immigration steps that needed to be taken prior to effecting the contract.
  • Where is the contracting party located? Start with a basic google/baidu/whatever your country uses search? Where are their offices located? Do they have any other employees? Are they listed in local business guides? Have you performed a Linkedin search? Is the same contracting party the one hiring you? A related issue is whether your work is to be performed at a specific “location”, but that will be a topic of a whole separate future post.
  • When are you expected to start? Begin your immigration process? Hiring a foreign worker is not easy. Any job that states you can come next week with a simple “visa” or “work visa” should raise red flags. Any company that asks you to pass over money to assist in your own hiring is an absolute red flag! There are strict rules against employees paying for their own Labour Market Impact Assessment fees. Companies that ask you to pay a “lump sum” to the company for your own work permit or visa processing fees in the contract should be viewed with some suspicion.
  • Are there third-party agents involved? This should be an immediate red flag, particularly if the agents are from a foreign country and not located in the country you are getting your job in. Recruitment agencies are regulated (although not enough) in Canada, but arguably roam free globally. Be very careful when dealing with them and their purported job offers.
  • How are the companies aesthetics? Do they have a reputable website? Are there pictures of corporate executives/employees listed? Does the contract have a corporate letterhead? Is the signatory page properly effected?

2) Key = Find a Local Canadian Liaison

You don’t necessarily need a lawyer but you need someone knowledgeable and trustworthy on the ground who can make inquiries. At the very least, they need to be able to go to the company that offered you the job, knock on the door, and confirm that the company exists and that you are indeed the chosen candidate of the company.

I would not sign a contract until I have at least that personal knowledge or knowledge of a trustworthy individual.

3) Watch Your/The Communication

As giddy as you may be to get an awesome job offer from a company, make sure to protect your own personal identity. Don’t send information to anyone, definitely without solicitation and always cautiously when solicited. My general rule is I want at least a phone call or a Skype meeting with an individual before I sent personal information outside of my email signature.

Carefully track the communication – who is responding to the emails? Are they professional (do you know their name?)? Are they asking for reasonable requests?

If you have any doubts, remember a simple Google search is your friend (although not always a perfect one). If it is indeed a fraud or a scam there are likely other experiences. If the individual has provided fake contact information, it will likely come up as spam in a Google search. Several consumer protection sites exist that also look at the roots of domains. If a website purported to be a well-established Canadian business is showing up as a recently created site from the United States, red flags should definitely be raised!

Here’s to a fraud-free Canadian immigration system 🙂

Complex Immigration Scheme or Applicant in Impossible Position ?

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Complex Immigration Scheme

Particularly in cases where a bad faith relationship pursuant to r.4 of the Immigration and Refugee Protection Regulations is being alleged, Minister’s counsel may begin on a process of what I call “scheme formulating.” A process by which they will theorize the primary purpose of immigration as an elaborate scheme.

First of all let me say flat out, I hate fake relationship schemes. As an immigration lawyer and someone who wishes to lawfully sponsor my genuine spouse down the road, nothing sickens me more than a fake sponsorship scheme. There are tons of companies out there that for a few hundred bucks can cook up a way to get someone into Canada – fake refugee claim, fake sponsorship. These individuals are the reason scrutiny is that much heavier on genuine applicants.

Because of the knowledge of these schemes, inevitably some individuals with genuine sponsorships have their relationship labelled schemes.  Particularly at the Immigration Appeal Division (“IAD”), the schemes end up making up a large part of the written decision.

Placing the Applicant in an Impossible Situation

How is an application put in an impossible situation?

In Sandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061 Justice Montigny sets out as follows (emphasis added):

[29]           It appears from a careful reading of the decision that the Board member was prone to speculation and disregarded significant portions of the evidence. For example, the Board member found that because the Applicant’s husband knew details about her life, including her address, that he “either memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable” about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation: as was the case in Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 (CanLII), “[a] detail … that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication” (at para 58).

In Sandhu, the IAD decision both the stated knowledge of the Applicant about the Sponsor as well as an Affidavit from the Applicant nothing that an “uncle” was a family friend (the Board Member concluded was her ex-husband) were disregarded.

In Paulino v. Canada, cited in the Sandhu decision, provisions were made by the Applicant to support the Appellant’s son. The IAD member found that these provisions were part of a scheme.  At the Federal Court, Justice Russell, in allowing the judicial review, wrote (emphasis added):

[57]           For example, in paragraph 32 of the Decision, the Officer refers to different information which the couple gave “about the cause of the dissolution of the Appellant’s first marriage.” The Applicant has referred to a mental disorder and Mimi had referred to jealousy over the material possessions of neighbours and frequent arguments. There is nothing inherently incompatible about these explanations. Someone with a mental disorder can be jealous and initiate arguments. The Officer then goes on to speculate about the Applicant’s relationship with his ex-wife and mentions that he has made provisions for Mimi’s son. All of this is then subsumed by a general finding that whatever the couple says is all part of a general scheme of fabrication:

There is evidence that he has made provisions even now for the Applicant’s son. However, this is likely integral to the complex scheme the Appellant’s (sic) has fabricated; if he is to be believed, the full extent of which was not known to the Applicant. The panel finds that the couple’s shared knowledge, especially in the personal aspect of their lives, are not reflective of what one reasonably expects to be shared by a couple in a genuine relationship, who avers to be head-over-heel (sic) in love with one another.

[58]           Based on the Officer’s approach, it is clear that the couple cannot win. A detail (here the provision that the Applicant has made for Mimi’s son) that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication. All of their supporting documentation, and even positive factors, are left out of account because they are, according to the Officer, part of a general scheme of fabrication. The Officer says that “their answer about their mutual feelings for one other and their plans are vague: nothing is specific.” Yet there was considerable documentary evidence before the Officer, some of it pre-dating the visitor visa application, that spontaneously reveals the couple’s mutual regard and love for each other. All of this evidence is discounted.

The following are several possible examples I have seen in addition to the two above cases:

  • Appellant opens a joint bank account for Applicant (Canadian spouse) – Shows financial interdependence, but can be construed as a credibility concern because shows financial scheme -;
  • Appellant provides financial support to Applicant (Canadian Spouse) – Sign of financial interdependence, but can be construed of evidence of ‘buying way into Canada’.
  • Appellant has a child with Applicant (Canadian spouse) – Shows purpose of relationship and love, but can be construed as “tool” for immigration;
  • Appellant states that they have no immigration purpose to be with Applicant (Canadian spouse) but lack of immigration purpose taken as negative credibility finding because “no other reason appears to exists” – Appellant being honest about purpose should be a positive factor, but honesty treated as dishonesty and grounds for negative credibility finding;

Some of these situations have not yet ruled on by the Courts but I strongly believe they fit the mold (assuming the finding contributed to the the unreasonableness of the overall decision and tainted the overall reasoning).

Challenges with the Argument

I think there are certain issues that will challenge the ability to rely on this decision as a blanket. First and foremost, the “reasonableness standard” still provides that the tribunal-member has discretionary jurisdiction to decide questions of fact. Decisions also generally will not be overturned on one or two unreasonable factual aspects if the decision as a whole is still reasonable. I believe that the difficulty will be in Counsel showing that the one interpretation of a positive primary purpose element as a negative primary purpose element had the effect of leading to the discounting of additional evidence which led to the negative finding.

Conclusion

Every negative credibility finding and negative primary purpose element should be carefully viewed in context. Is that element strictly a negative factor? Can it possibly be a possible factor construed to place the Applicant in a positive situation? It may be a difficult argument to establish (given only a few judicial precedents), but it is one that becomes increasingly important as marriages, relationships, and the ‘bad faith’ scrutiny gets stricter and more complex.

As a post-script, we used this argument in the above example involving bank accounts in recent Judicial Review and were successful. The decision was a brief one and it was only one of many factors the Judge considered, but we arguably ‘won’ on this issue. It has some legs for sure.

 

 

Opinion: Gentle Recommendation Not Firm Laws Should Guide the Citizenship Oath/Niqab debate

Niqab

Introduction and Background

The debate between the place of niqabs in Canadian Citizenship ceremonies is a complicated one.

Well-reasoned arguments have been put forth by both sides, some like Omar Aziz who pointed out in his piece that while a woman’s freedom to dress as she wishes must be protected, the niqab itself challenges our foundations of liberal democracy in Canada. Gerald Kaplan, in his piece admits that he was first put off by the niqab but that having met several Muslim women (many of whom proudly wore the niqab), he changed his views and believed that both the infringement of a woman’s right to choose how to dress and the making of the niqab a political issue was not appropriate.

Just recently, through a last-minute Bill introduced into the House of Commons prior to its pre-election summer recess, Minister of Multiculturalism and State Tim Uppal, has solidified that the Government’s position that the niqab must not be worn at a Citizenship ceremony. Bill C-75, or the Oath of Citizenship Act, would make it a requirement for all individuals to have their face uncovered and be seen and heard taking the Oath of Citizenship.  This comes in light of another recent development, which saw Tim Uppal support his fellow MP Lisa Raitt in a decision to waive a new CATSA requirement for individual who wear headgear (i.e turbans) to have them inspected during secondary screening.

What is very interesting about Bill C-75 is that it comes at a time where it has no possibility of being passed into law prior to the election in the Fall. It also comes at a time where the Federal Court of Appeal has yet to decide on the Federal Government’s appeal of the ruling of Justice Boswell of the Federal Court of Canada in Ishaq v. Canada (Minister of Citizenship and Immigration) 2015 FC 156.

In Ishaq, the Applicant filed a Judicial Review for declaratory relief of the requirement that she reveal her face during the Citizenship oath. She had completed all of her other obligations, and had even revealed her face prior in order for her identity to be confirmed. At the time there was both an Operational Bulletin and Manual which required as a  matter of policy that an individual visibly reveal his or her identity during the oath. Justice Boswell found that this policy was unlawful both in light of the Citizenship Act and Regulations which required only that the oath be sworn and that a signature be signed and contained no language regarding visual identification. Justice Boswell did not, however, tackle the Charter issues raised and decided it was sufficient to find the policy unlawful.

Bill C-75 thus represents the Government’s steps to address many of Justice Boswell’s concerns regarding the pre-existing policy. As discussed the Federal Government’s appeal in the case is still in process.

My Perspective

I think the main challenge we are having with this debate is that the harm principle (as set out by famous utilitarian political thinker John Stuart Mills) appears to split us two different ways. The harm principle although not enunciated word for word within our legal texts find its way into our case law and into our legal tests (such as the Oakes Test to determine whether it is acceptable to uphold a Charter violation).

In one sense,  the niqab represents to many Canadians (what the Government has stated is a majority of Canadians) something they culturally disagree with as un-Canadian – i.e. it doesn’t make us happy and doesn’t bring us utility. They see the niqab as a symbol of misogyny, of a religious/societal modus where women are not recognized on equal footing and where men subject to patriarchally-created rules. For the record, I do not conform to this over-simplified belief and know both individuals who wear the niqab and the hijab out of free will and as part of their complex, strong identities.

Moving to Mills’s second tenant of the principle, the niqab does not apply in the traditional harm principle sense as it does not create any harm to the freedom of any individual or the operation of the state.  Ironically, wearing headgear through security is an issue that does possibly trigger the harm principle. The harm principle arguably came through and was applied in the 2009 case of Alberta v. Hutterian Brethren of Wilson Colony  2009 SCC 37 where a religious group argued its religious inability to appear in photographs exempted them from the requirement to take photo license pictures. The Province argued that highway safety and licensing problems were created for the Province and that it was a demonstrable legal concern. Within the Citizenship context is hard to say that the security of other individuals or the state is compromised. There is no harm to either fellow oath takers, the judge or the audience if an individual with a niqab does not show their face. The physical identity is revealed and confirmed in several steps prior to the actual oath taking. There are minimally impairing options that would allow an oath taker to reveal their identity right before in a private setting or through biometric technology.

On this point, I think the harm principle is not challengeable. It is difficult to buy an argument from the Federal Government that public safety is harmed by not confirming the individual’s identity at that exact moment they swear the oath. I don’t think anybody can put forth a strong argument that the niqab harms anyone’s freedoms other than the perceived “western-sensibilities” of Canadians.

The argument that the niqab harms the “liberal democracy of Canada” is also a little far-fetched (with respect to Omar Aziz’s argument). While the principles of democracy may have been formed in Ancient Greece through face-to-face talking circles of aristocratic white males, and arguably developed in Canada and North America by similar artistocratic white men in face-toface meetings, democracy does need to be spoken or expressed face to face. This is even more true in today’s diverse North American society. Individuals with disabilities, individuals from different religious backgrounds, from different countries of origin, can all participate in our democracy simply by wearing what they want, living where they want, and supporting politically whom they want. They don’t need to tell anybody or say anything, and importantly show their face and reveal their identities. Even the act of voting, once registered by name, is inherently private. If our only justification for the niqab requirement is anchoring on tradition, arguably we should be celebrating Citizenship ceremonies with Aboriginal traditions, dance, and drumming (by the way, which unrelated we should start doing).

What about the utility argument? What makes a majority of Canadians happy. The defense for the niqab-ban is that a majority of Canadians are supportive of this policy (in a sense, that it makes a majority Canadian’s “happy.”) This makes sense in the context of most decisions we have the unique democratic to vote on. We get to vote for elected officials, for transit reform, for support of certain policies. We vote for the individuals who bring us some utility.

However, there are two problems with this line of thinking. We don’t vote, and we shouldn’t vote, on issues that threaten to take away from the fundamental human rights of other individuals. This includes the Charter right of religion. Along this line of reasoning, the Government’s logic could be extended to things such as same-sex marriages. The Government could come out with a policy that banned same-sex individuals from taking the Oath simply because a majority of Canadians support it (which thankfully, which most Canadians no longer do). We cannot allow legal decisions to be made on the normative feelings of the tyranny of the majority and without a sufficient legal basis (which the Federal Court has yet to find in support of the policy).

Second, if this was indeed an issue where a “majority of Canadians” do not support the niqab, we need to ask ourselves where the statistical proof is coming from. Without any sort of reliable, independent census, we cannot rely on scattered polls of 1,000 individuals. Most immigrant families I know do not even bother or risk answering any of these questions by phone. I do not for one minute think that a small survey sample (regardless of whatever mathematical formula is used) can suddenly represent all Canadians. However, this same justification is being used time and time again to support new legislative change in immigration.

We are also forgetting, in all this debate (and that the Federal Court alluded to in Ishaq), that the Citizenship Oath itself is a celebration of the transition of an individual from one Country to another and many feel proud of being able to maintain both religious and cultural traditions. Individuals can choose to swear to the Queen of England upon any religious book of their choice, including the Quran. It is indeed a beautiful hybrid of our British tradition and our multiculturalism openness, one I hope is maintained (plus a little more Aboriginal perspective).

What I Think Should Be Done – Set Non-Binding Recommendations. A Woman’s Right to Clothing Preference is Not a Legal Debate.

Laws are different than policy. That was made clear in Ishaq. Policies are problematic when they are attempted to be enforced as laws or defended by institutions as the only way or traditional way things operate. Recommendations serve a different function. They seek to recommend that certain things are not done but that the ultimate “right” lies with the individual to choose or not to choose to follow the guideline. Recommendations may suggest normative guidelines (you should wear clothes that allow you to show your face) but do not ultimately impose normative laws. There are no consequences to an individual who does not follow a recommendation.

A recommendation could be made and disseminated as follows: “Applicants are recommended to wear to the Citizenship Oath, clothing that allows individuals and the Judge present at the Oath to visibly see them and to celebrate the important event alongside them. Individuals are permitted to wear religious clothing and are encouraged to do so in a way that is respectful to themselves and the other new Canadians who are in attendance.”

This recommendation achieves several goals. It suggests, without specifically pointing out a specific article of clothing, that what should be worn should be done so respectfully with an eye to those in attendance. It strengthens our resolve as a country that recognizes cultural differences. It shows respect to those who may feel “offended” by certain outrageous pieces of clothes without any justification (a bikini for example or some sort of gang-related clothing). Ultimately it provides the oath taker freedom to choose what to wear without legal restriction: a fundamental right of today’s liberal democracy.

We are not and cannot all be scholars of Muslim history. Even within Muslim circles, there is debate over the niqab. There is social debate between Muslims over whether wearing a niqab is a symbol of strength or weakness and arguably it is different for every Muslim. The Federal Government appears to have polarized Muslims as either “respectable normal muslims” or “jihadi terrorism”, a dichotomy that does not exist and I argue is very hurtful to believers of the religion.

Make no mistake, the religion and many of its religiously-dominated and ruled societies aren’t perfect, but I put forth none is. Canadian society itself is far from perfect. However, for me a step towards a perfect Canada is one where we allow individuals to make decisions for themselves, gently prod but never push individuals to make decisions about their Canadian identity. Recommend that individuals reveal their faces during the Citizenship Oath and allow them the right to choose whether they wish to do so.

Counsel’s Increased Liability under the new Citizenship Act/Regulations

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Many of you have may have noticed that I have been quite active in writing about the recently in-force Strengthening Canadian Citizenship Act [“SCCA”] and how it may affect Applicants. Earlier this week, I wrote this piece for New Canadian Media where I looked at good, bad, and ugly provisions of the SCCA and ultimately concluded that it’s contradictory effect on immigration policy may be more harmful than the provisions themselves.

I’ve also been looking at how the SCCA may affect the work of Counsel (which I will use interchangeably with the term Authorized Representatives) for Citizenship Applicants. In my forthcoming article in the Citizenship and Immigration Law Bulletin for Thomson-Reuters, I present a case that Counsel may be drawn into greater responsibility for tax law issues now that Social Insurance Number-sharing provisions have been introduced into the Citizenship Regulations.

In this piece, I want to look briefly at another issue which may affect Authorized Representatives as a result of the changes to the Citizenship Act and Regulations, the issue of ethical and professional liability and regulations that now allow for disclosure of wrongdoings from CIC to the regulatory body.

The Changes

As a result of amendments via the SCCA, The Citizenship Act now provides that it is illegal for an individual who is not designated as an authorized representative. to represent a Citizenship Applicant for consideration, whether this advice is direct or indirect.

18. The Act is amended by adding the following after section 21:
18. La même loi est modifiée par adjonction, après l’article 21, de ce qui suit :
Representation or advice for consideration
21.1 (1) Every person commits an offence who knowingly, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.
21.1 (1) Commet une infraction quiconque sciemment, de façon directe ou indirecte, représente ou conseille une personne, moyennant rétribution, relativement à une demande ou à une instance prévue par la présente loi, ou offre de le faire.
Représentation ou conseil moyennant rétribution
Persons who may represent or advise
(2) Subsection (1) does not apply to
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province; or
(c) a member in good standing of a body designated under subsection (5).
(2) Le paragraphe (1) ne s’applique pas aux personnes suivantes :
Personnes pouvant représenter ou conseiller
a) les avocats qui sont membres en règle du barreau d’une province et les notaires qui sont membres en règle de la Chambre des notaires du Québec;
b) les autres membres en règle du barreau d’une province;
c) les membres en règle d’un organisme désigné en vertu du paragraphe (5).
Students-at-law
(3) Subsection (1) does not apply to a student-at-law who offers or provides representation or advice to a person if the student-at-law is acting under the supervision of a person described in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with a proceeding or application under this Act.
(3) Il ne s’applique pas non plus au stagiaire en droit qui représente ou conseille une personne, ou qui offre de le faire, s’il agit sous la supervision d’une personne visée à l’alinéa (2)a) qui représente ou conseille une personne, ou qui offre de le faire, relativement à une demande ou à une instance prévue par la présente loi.
Stagiaires en droit
Agreement or arrangement with Her Majesty
(4) Subsection (1) does not apply to an entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with an application under this Act if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.
(4) Enfin, il ne s’applique pas à l’entité — ou à la personne agissant en son nom — qui offre ou fournit des services relativement à une demande prévue par la présente loi si elle agit conformément à un accord ou à une entente avec Sa Majesté du chef du Canada l’autorisant à fournir ces services.
Accord ou entente avec Sa Majesté
Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.
(5) Le ministre peut, par règlement, désigner un organisme dont les membres en règle peuvent représenter ou conseiller une personne, moyennant rétribution, relativement à une demande ou une instance prévue par la présente loi, ou offrir de le faire.
Désignation par le ministre
Regulations — required information
(6) The Governor in Council may make regulations requiring the designated body to provide the Minister with any information set out in the regulations, including information relating to its governance and information to assist the Minister to evaluate whether the designated body governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.

The above-language used in the SCCA suggested that further  regulations governing the conduct of authorized representatives would be introduced.

The new Citizenship Regulations now in-force (supplementing the corresponding SCCA changes to the Citizenship Act) provide those further details.

Among the Citizenship Regulations introduced are those which clarify that ICCRC-designated Immigration Consultants can advise on Citizenship for consideration. Also, there is clarification that any application where an Authorized Representative listed is not in fact authorized will result in applications being returned, unprocessed.

REPRESENTATIVES AND ADVISORS

Purposes of subsection 21.1(5) of Act

19. For the purposes of subsection 21.1(5) of the Act, the ICCRC is designated as a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Act.

Person not authorized under subsections 21.1 (2) to (4) of Act

20. If an applicant is represented or advised for consideration in connection with a proceeding or application under the Act by a person who is not referred to in subsections 21.1 (2) to (4) of the Act the application will be returned to the applicant because it is not accepted into processing.

The new Citizenship Regulations also create that vehicle by which CIC can privately disclose to professional regulatory bodies such as the Immigration Consultants of Canada Regulatory Council (ICCRC) and provincial law societies, conduct which may raise ethical and professional concerns [emphasis added] (see full language of regulations: here).

DISCLOSURE OF INFORMATION

26.1 If the Minister determines that the conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Minister may disclose the following information about that person to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

  • (a) their name, postal address, telephone number, fax number and email address;

  • (b) the name of the professional body of which they are a member and their membership identification number;

  • (c) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

Increased Risks

I believe this later provision may pose some risk to authorized representatives who advise on Citizenship.

For example, the ICCRC Code of Professional Conduct (here) contains several provisions regarding competency and quality of service. I don’t see anything preventing Citizenship and Immigration Canada (CIC) from disclosing to ICCRC poorly or incompetently filed applications or where a representative has failed to meet deadlines or Citizenship Act requirements. This could ultimately be used against the Authorized Representative, either if the regulatory body or an upset client decides to raise a complaint against the Authorized Representative.

What makes this challenging is that CIC ultimately stand on opposite sides of the coin when it comes to assessing an application. I’ve read of numerous occasions in case law where counsel for the Applicant takes a perfectly legal, but highly risky approach, on a file and CIC has taken a position against the strategy or approach is abusive or frivolous. The line between what is considered “incompetent” and what is considered “abusive” or “frivolous” is in my mind very thin.

Further interesting questions are also raised. Will the ICCRC inform the consultant immediately of any CIC report so that the consultant can fulfill his/her obligation to advise the client immediately on errors and omissions? Or will this mistake sit in the coffers of the ICCRC until the application is ultimately refused. How will such misconduct affect the Applicant’s overall case?

Of course, what I have pointed out is the extreme use of this disclosure mechanism by CIC. It is both impractical and imprudent for every non-competent act to be reported by CIC to the regulatory bodies and application refusal is the more likely option.

Furthermore, misrepresentation is likely the main “culprit” that this new regulation is aimed at. However, even the law of misrepresentation is not straight forward. For misrepresentation to be made out, there must be a finding that the direct or indirect misrepresentation was material to the Officer’s overall decision. Under the new regulations, for the disclosure to be made to the regulatory body only a “likeliness” that it violates the ethical or professional obligations of the representative is required.  A much lower standard.

Furthermore, what happens to the fact that ICCRC-designated consultants (this affects lawyers too) are prevented from disclosing who their clients are without their client’s consent or required by law. Do these disclosure requirements constitute an application of that exception that the client’s name can be openly disclosed to the ICCRC (or in the case of lawyers, law societies)?

A lot of questions, few answers, but definitely an area I am very interested in analyzing further. I don’t think similar regulations exist (as far as I know) for the Immigration and Refugee Protection Act. I can definitely see a “chill” felt by practitioners if this disclosure mechanism is in place though. While it may have some positive effects (reducing errors, frivolous and bound to fail applications) it may also be too much unnecessary, non-independent oversight that detriments client representation.

Excerpt from My Law School Personal Statement Back in 2010/11

personal statement

A lot of individuals and friends of mine have now completed their LSATs and are in that second part of the battle, putting together a law school application.

 

I thought it would be useful to put to and excerpt of what I wrote back in the day. I’m lucky and fortunate to be able to live out the words I wrote below:

On a sweltering summer day in 2007, I was assigned to be the clinic assistant for a low income African immigrant named Naomi. She had spent the past six months suffering from severe back pain and was unable to work as a result of the Plaintiff’s reckless driving. At the time of the accident, the plaintiff had been apologetic, leading Naomi to feel compassionate and not pursue further action. A recent immigrant from Africa, she was also unaware of her legal recourse.

Hearing her story, both on the phone and in person I was reminded of my own father, who arrived in Canada at 26, a doctor from Shanghai, similarly compassionate, but unaware of the struggle for recognition he would face. Walking an exhausted Naomi to the lawyer’s downtown firm, I was reminded me of my own mother, struggling to bring the weekly vegetables up the hill. Without the vegetables, there would be no dinner for the wealthy diplomats who offered my family free rent in exchange for three cooked meals a day.

Perceiving me to be a paralegal, Naomi praised me for my earlier efforts and asked me countless questions in hopes of gaining my advice. As much as I wanted to provide my own advice, I knew that my volunteer position required me to be merely a listener and a recorder of relevant detail. Inside, however, I knew that I had to continue my commitment to studying immigration. I also decided that day that I would become a lawyer, to help those like Naomi and my parents.

As a side note, it is imprudent to send the same personal statement to every single law school in the country. Consider it the same as if you were to send the same cover letter to every single employer in the country just because they offer the same position.

Guest Post: “Marouf” by Abigail Cheung

I’m proud to feature today the guest post of a friend of mine and soon-to-be lawyer extraordinaire, Ms. Abigail Cheung. Abigail has a long-standing interest in immigration law, and I am sure will continue to be very active both from a legal and policy perspective for years to come. Currently, Abigail is a Summer Articled Student at one of Canada’s top law firms based out of it’s Vancouver office.

In this piece, Abigail talks about her work in U.S. Immigration Law and at an Immigration Law Clinic while she was an undergraduate student at Yale University.

afghanistanman

Kabul does not have mailing addresses the way other cities do. So imagine my surprise when I received a response to a letter I’d sent to the address “opposite the Dutch Embassy, Kabul,” a week after mailing it from the US to Afghanistan. Even more incredible than the package’s arrival were its contents: three intifadas handwritten by members of the Taliban. I know these things because, in my third year of university, I met Marouf.

Although I had taken a course on US Immigration Law before participating in a clinic called Immigration Legal Services at Yale Law School, no amount of training could have prepared my partner or me for the man we would come to know intimately over the next four months. The first time we interviewed Marouf, Scarlet and I were nervous, but Marouf was positively skittish. It quickly became apparent that the questions we had prepared weren’t altogether appropriate. Before us was a man who told us he had been kidnapped and tortured and had left everyone and everything he knew behind because people had threatened to kill him. And here we were, wanting to know details like how long Marouf had lived in a refugee camp, and whether or not he had a graduation certificate from the school he’d attended there to prove that.

Sometimes, Marouf would get frustrated. Why were we asking prying questions about his family members’ lives? Why were we asking him to delve into memories he had tried to forget? Sometimes, we would get frustrated. Marouf told us his story one way; the next time we met, his story, or its chronology, had changed. Was it possible, we wondered, for someone to forget how many times his kidnapper had beaten him? Could one fail to remember the contents of a personalized death threat?

For months, we worked feverishly. We made timelines and checklists. We found translators who helped us maneuver between Farsi and Dari. We perused country of origin information, sought out expert testimony and outlined the basis for Marouf’s claim. Four months later, we had a comprehensive story.

Over the course of our interviews, I noticed changes in Marouf. Scarlet and I worked on building trust with Marouf until he was willing to volunteer information without prompting. Initially afraid of the dark, Marouf eventually overcame his fear and even drove to one of our interviews at night. Gradually, Marouf opened up and excitedly told us about his brothers, sister and nephew.

Marouf also changed me. When you realize that failing to complete your homework to the highest standards could result in your client’s deportation and potential death, you develop a new type of work ethic. When someone calls you on a Friday night to ask you if committing suicide might protect his family members from danger, you gain a new level of compassion. When someone explains what it’s like to have handwritten death threats posted on his family home’s door on three separate occasions, war takes on new meaning.

Marouf attended his immigration hearing in December 2010. One month later, Marouf was granted asylum.

After meeting Marouf, it was hard not to think about war and migration in human terms. The summer after I met Marouf, I met a Rwandan who ran a computer shop in South Tel Aviv. A long, framed photo of men dressed in traditional costume and their cattle hung over the store’s entrance. After he caught me looking at it, Sentwali invited me to sit down. He explained that it was his only picture of him in his hometown, which had since been razed to the ground. Two years ago, I met an Eritrean woman in Hong Kong. During one of our interviews, she rolled up her sleeves to show me scars she had had gotten from having been tied to a tree and left under the baking sun for hours—punishment for being a Copt in a country that didn’t recognize the religious sect.

Several years after first meeting Marouf, I am no longer satisfied with listening to immigrants’ stories; I’m determined to change them. A few months ago, I attended a rally in downtown Toronto where participants spoke out against the governments changes to live-in caregivers’ pathway to permanent residency. My hope is that by speaking up, we can make sure immigrants’ stories are not just stories on a page.

Cultural Challenges at the IAD

Two weeks ago, I attended a very interesting workshop held at the Law Courts Centre discussing the issue of how issues around ethnic diversity and race may affect the overall judgment of a legal decision-maker. Given that the speakers were a current judge and a former judge (now lawyer), I expected a very cautious discussion. I was surprised to find that both admitted there were significant cultural competency challenges facing decision-makers, particularly around such things as cultural traditions (re: marriages and families) as well as the importance of effective interpretation/intepreters.

The Use of Interpreters

I recently had the privilege of sitting in on an Immigration Appeal Division (IAD) spousal appeal where I witnessed interpreting challenges in practice. The interpreter admitted at the forefront that there were dialect issues and in general was having difficulty keeping up with the fast pace of the witness (who was testifying by phone). The decision-maker was noticeably irritated by the witnesses inability to be concise and cooperate with the interpreter. Cantonese for many who do not speak it comes off very fast and harsh (even to someone who speaks mandarin like myself). The Member at the hearing was noticeably unamused by the tone of the witness.

At the workshop, the judges both recommended that if the witness is able to speak English they should use that as the language of testimony. I completely agree. The individual used (particularly in immigration hearings) is not a professional certified interpreter. Furthermore, many terms and human emotions simply do not pass through interpretation. I believe that the credibility of the witness is is inevitably weakened and definitely not aided.

Mental Illness

Another cultural challenge that I have seen in several IAD cases (a few that have led to Judicial Reviews) is the issue of mental illness and disability. In the West, we have a very advanced view of mental illness and disability compared to many countries of the world. While undoubtedly  stigma and prejudice still exist, parents generally know from an early age from their family doctors and educators what the child suffers from and what type of treatment options are available.

In much of the world this is not true. Mental illness is not well-studied nor understood and it is often not an issue that families enjoy discussing at the dinner table. Rather than relating to the specific name of the disease, the Chinese name for many of these illnesses is simply the blanket term “mental illness” or “personality illness.”

Consequentially, I have seen quite a few cases where family members and spouses were unaware of the diagnosis of the mentally-ill/disabled individual and only able to describe several of the key effects (i.e lower IQ, trouble functioning in public, etc.). These factors were later turned around and used as signs that the underlying relationship (in the immigration context) was non-genuine and therefore excluded the family relationship and rejected the appeal.

I think decision-makers, particularly at the IAD stage need to be very aware of the different cultural stigmas around mental health and how lack of knowledge of diseases may not necessarily be a sign of a non-credible witness or a non-genuine relationship.

The ‘I Love You’ Factor

Another issue that I have seen arise in the IAD is in the assessment of the types of actions which demonstrate love.

Perhaps to the archaic nature of case law in the area, the genuineness of a relationships is still defined in large part on things such as telephone records and love letters. Importantly, the relationships must be centred around love and the need for proof of the “I love you’s.”

In the modern day however, this evidence of genuineness may not always be true. Several couples use Whatsapp, Skype, or some cultural chat software (QQ, Kakao Talk, WeChat) to communicate. Many of these platforms do not allow for message histories to be effectively kept and furthermore some of the sending of media images back and forth and video chats, and conversations in foreign languages, are not readily transcrible. In one IAD refusal decision I read, the sending of media back and forth between a couple was described as “illogical.” The individual Member had likely never used Whatsapp before.

A second challenge that bogs many foreign couples (particularly older ones), I find, is the actual use of the words “I love you” in various contexts. Even in my own parent’s generation, the words I love you are rarely ever said or heard around the house. If asked why they are together or attracted to each other, I am sure my parents would come up with issues related around responsibility, similar view on household chores/economics, etc.

I think it is important to be sensitive to the way love is expressed in different cultures and not draw negative inferences based on different understandings.

Just a few thoughts on this Sunny Sunday in Chongqing, China.

Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 2)

Introduction

In this section, I will look at the Canadian Film and Video Production Tax Credit’s (CPTC) provisions around Key Creative Personnel and why, consequentially, Telefilm Treaty Co-Production Agreements are desirable from an immigration perspective.

Telefilm Treaty Co-Production Agreements

The first stage in determining whether the Key Creative Personnel are met is to determine what type of production is in question. the CPTC Guideline sets out two different types, Live Action Productions and Animation Productions, each with their own set of scoring rules.

For a Live Action Production the following positions are considered for a maximum of 10 points. To qualify, one of two of the director positions and one of two of the lead performer positions must be filled by a Canadian.

  • Director – 2 points

  • Screenwriter (see s.4.06) – 2 points

  • Lead performer for whose services the highest remuneration was payable (see s.4.05) – 1 point

  • Lead performer for whose services the second highest remuneration was payable – 1 point

  • Director of photography – 1 point

  • Art director – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 points

For a Animation Production the points are as follows:

  • Director – 1 point

  • Screenwriter and storyboard supervisor (see s.4.06) – 1 point

  • Lead voice for which the highest or second highest remuneration was payable (see s.4.05) – 1 point

  • Design supervisor (art director) – 1 point

  • Camera operator (in Canada) – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 point

  • The following points will be allotted if the work is performed solely in Canada.

  • Layout and background – 1 point

  • Key animation (must be in Canada) – 1 point

  • Assistant animation and in-betweening – 1 point

With respect to Animation Productions, there are some additional requirements. Either the director or the screenwriter and supervisor must be Canadian. Either the highest or second-highest remunerated lead voice must be Canadian, and all key animation must be done in Canada.

There are also several general rules that apply to all types of Key Creative Personnel. Among the general rules are several important for immigration purposes. No points are to be awarded for Canadians who share key personnel roles for other non-Canadians. Also, the camera operator role for Animated Productions must conduct his work in Canada. Also, scoring on a collection of films or a series of films must be done individually and the production company should make a separate list of individuals who worked on each production.

Why are Telefilm Treaty Co-Productions So Valuable from an Immigration Perspective?

Canada has currently 55 Co-Production Agreements and Memorandum of Understandings with several countries. The full list can be found here.

The benefit of a Treaty Co-Production Agreement is that pursuant to the CPTC Program Eligibility Requirements, these films operate under the specific Treaty Co-Production Agreement rather than the CPTC Guidelines with respect to the Key Creative Personnel and Producer-Related Personnel. The CPTC Guidelines regarding the Key Creative Personnel point system and the rules surrounding production-related personnel need not apply.

The language in these agreements is generally much more favourable than the CPTC Guidelines. For example, in the 2014 Audiovisual Co-Production Agreement Between the Government of Canada and the Government of the Republic of India ( the “India Agreement), Articles 3 and 5 provide that producers and participants can be a national of one of the parties and that through mutual consent in writing by administrative authorities, can also include third countries.

The India Agreement also provides in Article 6 that the Parties shall facilitate temporary entry and residence in the respective territories for creative and technical personnel and performers.

Importantly, one of the countries that does not have a Treaty Co-Production Agreement with Canada is the United States. One of the areas I will be researching into in the future (possibly through ATI requests) is how American film productions, through filming in Canada, partnering with local production companies, and utilizing Canadian actors in key lead roles have been able to take advantage of the CPTC tax credit.

Hope you enjoyed the post 🙂